Technoviking, the Canon and the Right to Forget

One of the things I loved about my time interviewing artists for the radio and my old blog/podcast was hearing them assess and describe their motivation.

Lisa Kekaula of the Bellrays comes to mind in this context. When I interviewed her, her band had been recording with a very moderate amount of financial success for many years. Their live shows were legendary to anyone who had taken the time to see them, but they were, then as now, far from being a household name.

In the months preceding our interview, the band had licensed one of its (arguably best) songs – Revolution Get Down – to Nissan for a car commercial. When I asked her about the choice to license the song — to my embarrassment, I did so in the context of a rather ham-handed “Isn’t this a sell-out?” type question — Lisa replied in a tone that suggested that she and her band mates had nothing to apologize for.  In fact, she indicated that selling the song for a commercial aligned neatly not only with her financial imperatives but also with her goals as an artist.  I’d have to paraphrase (the audio from the interview is sitting in a hard drive in storage in Montreal) but her response was essentially: “Our goal, the goal of any artist, is to see our work join the canon … if we get there because of the radio or because of a commercial, it doesn’t so much matter.”

In short, not every artist wants to be “famous” per se, but no artist sits down and creates in hopes that their work will remain unknown; every artist is looking for his or her audience, the people to whom his or her art might speak.

I thought of Lisa’s quote earlier this week when I read coverage regarding the German law suit filed by Technoviking. It’s a case which has me thinking about fame and privacy, and how we define, create, protect and limit them. Primarily, Technoviking made me think of Lisa because it seems that, contrary to every instinct alive in the “reality show” century, Technoviking has no interest in being famous.

If you haven’t heard, Monsieur, uh, Viking, has recently sued the videographer who recorded him at Fuckparade in 2000 – an artist named Matthias Fritsch.  Though details are sketchy, the claim seems to be based on the illegal use of his image.  There is some talk of disgorgement of profit, but the central idea seems to be that the subject of the video – the Viking himself, who has filed the proceedings anonymously – no longer wants to be in the public eye.*

The whole situation is fascinating to me for a number of reasons: the first of which has to do with the concept of internet time.

Think for a while about how long 12 or 13 “internet years” — the time between when the video was shot and today — is.  There was no YouTube when Technoviking did his thing in 2000 and the concept of internet famous has gone through several quantum leaps since.

Now think as well, from our current perspective, about how the internet has changed our concept of public behaviour.  More specifically, think about how our understanding of the consequences of doing something noteworthy (Or silly. Or awesome.) in public are evolving. When I was a communications consultant 10 or 15 years ago I used to tell my clients “Don’t post anything to the internet that you wouldn’t want published on a downtown billboard**”.  Once it is out there, it is out of your hands.  To put it in a Bellrays context: Don’t sell your song to Nissan unless you want everyone – including your fans who might think you have sold out — to know about it.  And, when they know about it, don’t think you’ll have any control over how they react, or who they will tell.

I wonder if, given the ubiquity of smartphones and the mobile internet, the decision to act in a noteworthy way (to dance aggressively, to walk down a street naked to the waist looking like Thor, the decision, if you will, to create something, even a personal image) has separated from the decision to “publish” that creation.  Issues of copyright and privacy law aside, Technoviking suggests to me that we have, more than ever, lost an element of control over our public displays of noteworthy behaviour. We don’t always have the choice of whether to sell our songs to the car company, the mobile internet has distributed that choice in an unprecedented way, often to complete strangers.

Now, if you are a viewer and consumer of awesome content, this is a great development.  It is also great if you’re fond of schadenfreude or if you are into wiling away your afternoon at work watching drunk and/or high and/or poor people beating the living crap out of each other.  It is significantly less awesome, however, if you are the unwilling or unsuspecting subject of stuff that other people think is cool.  You might become part of the canon, whether you want to or not.

As such, and despite the issues of anonymity involved, the Technoviking case is also an excellent lens through which to think about the potentially overwhelming practical problems inherent in the so-called “right to be forgotten”.  Search engines are extremely democratic.  If you have done something particularly noteworthy, it will probably be the first thing that people find when they Google your name.  It might only be a matter of law to “remove” the noteworthy event from a set of search results if you have become noteworthy in a relatively limited social circle, geographic or psycho-geographic area.  It might even be technically possible in such a limited context, but if you have done something interesting enough to become meme-worthy, all of the good-intentioned law making in the world isn’t going to un-ring the bell.  To put it another way, the 21st Century canon, the internet canon, is not only unpredictable, it is also permanent.

Another place to look

The lawyer in me couldn’t help but also think of the Technoviking case as a matter of prescription.  How is it that he could wait almost 13 years before filing his proceedings?  It seems that German law on prescription was updated relatively recently (in 2001, after the Technoviking video was shot) and the delay to institute proceedings for a violation of privacy rights post-reform seems to range from three up to 10 or even as many as 30 years (rather than the three-year delay in French and Quebec civil law). If such geekiness interests you, you may want to read this paper. (in french)

This post could have hit 4000 words had I continued writing about my thoughts on the arguments in favour of the right to be forgotten (which are rich, interesting and by turns scary) and my related thoughts about how the right to be forgotten overlaps with different legal and cultural concepts of freedom of speech and defamation.

More specifically I have been thinking about how the truth is an absolute defense in North American common law while it is a contextualized issue in civilian systems (in Quebec, for example, truth uttered recklessly or with an intent to harm is still defamation). More broadly, it has me wondering about how much of the north American concepts of truth and freedom of expression are hard-coded into the ‘Net and how this coding might be a challenge to those – like me – who are spending time thinking about how to build capacity for net-based free speech advocacy in the global south. If you’re interested in those sorts of questions (and there are, admittedly quite a few of them in the last couple of sentences), a good place to start might be this paper published by Global Partners and Associates.  If you read Spanish (I don’t) the University of Palermo in Argentina has drafted this as well.

The footnotes

*I suggest that the anonymity issues are primary because the – admittedly limited – media coverage of the suit indicates a (relatively) small damage demand and because Technoviking’s lawyers have gone through the trouble to file the proceedings anonymously.  I’m not at all familiar with German procedure, but I know that in Quebec, any such anonymity would have to meet a very high bar of justification.

**Full disclosure: The second half of this phrase was often “On the front cover of the Globe and Mail” but I would suggest, with apologies to my friends in the media business, that that threat has lost some of its currency.

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